surveillance

The United Nations adopted a resolution, sponsored by Brazil and Germany in the wake of the revelation that the United States was eavesdropping on leaders in those countries, supporting the protection of Internet privacy, the BBC reports. The non-binding resolution affirms that '"the same rights that people have offline must also be protected online,'" the BBC further reports.

The hope of such non-binding international measures is that they will influence international norms.

The Washington Post reports on the recommendations of the panel, appointed by President Obama, to curb surveillance by the National Security Agency. Instead of the NSA collecting virtually all of Americans' phone records, the panel "urged that phone companies or a private third party maintain the data instead, with access granted only by a court order," The Post reports. The panel also suggested a ban on warrantless NSA searches for Americans’ phone calls and e-mails legally collected in a program at foreigners overseas, The Post further reports. The Obama administration says it will reveal proposed changes to surveillance, including taking into account the panel recommendations, next month.

While there has been a lot of celebration of Judge Leon's opinion that the National Security Agency's collection of telephone metadata likely violates the federal Constitution, Just Security's Steve Vladek argues that the district judge faces being reversed by the D.C. Circuit on his holding that the plaintiffs’ Administrative Procedure Act "claim (challenging the metadata program on statutory grounds) is precluded by section 215 itself."

The result? "Then that will bring the statutory question to the fore–for the Court of Appeals to either decide as a matter of first impression or send back to Judge Leon," Vladek writes. "And if, as many (including me) believe, the program can’t be reconciled with the statute, then we’ll end up in the same place (the program in its present form will be enjoined), without ever having to answer the thorny and far more far-reaching Fourth Amendment question concerning twenty-first century expectations of privacy in metadata."

The Wall Street Journal has this helpful Q&A about the meaning of Judge Richard Leon's ruling that the National Security Agency has probably violated the U.S. Constitution by monitoring most phone calls in the United States.

A federal judge ruled today that the National Security Agency's surveillance of most phone calls made in the United States or to the United States is likely unconstitutional, Politico reports: "U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks."

Politico further reports: "Leon’s 68-page ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case."

The judge granted a preliminary injunction but promptly stayed it to allow for an appeal.

President Barack Obama promises that "I'll be proposing some self-restraint on the NSA" in an interview with Chris Matthews on MSNBC, according to Politico. However, the president provided few details on what form that would take.

The president also said the NSA is reasonable in the amount of domestic surveillance it conducts in terms of "not reading people's emails, not listening to the contents of their phone calls" but that the NSA's foreign surveillance needs to be curbed more.

The Washington Post has another revelation on the basis of leaker Edward Snowden's materials: The National Security Agency is "gathering nearly 5 billion records a day on the whereabouts of cellphones around the world."

The Post further reports: "The NSA’s capabilities to track location are staggering, based on the Snowden documents, and indicate that the agency is able to render most efforts at communications security effectively futile."

Philip Alston, writing in Just Security, asks if the United Nations let the United States off the hook regarding Internet privacy. While the language of a United Nations resolution was watered down at American urging, Alston argues that there is good news in a resolution that is set to be adopted by the full UN this month. Among other good points, "by basing itself on the formulations of the right to privacy included in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the resolution implicitly rejects the US line that privacy rights derive only from a specific treaty which the US in turn insists has no extra-territorial implications," Alston writes. 

Gigaom reports on a petition filed by several major media companies, including The New York Times, Politico and Bloomberg, against the Foreign Intelligence Surveillance Court decision that the Media Freedom and Information Access Clinic at Yale Law School does not have standing to seek access to the court's decisions authorizing the National Security Agency to collect millions of phone and e-mail records. Among other arguments, Gigaom reports "the media companies also point out that they have fewer resources to defend free speech and civil liberties issues in court, and must rely on newer groups like the Yale law clinic to help lift a legal torch they carried for most of the 20th century: 'while [the media companies] feel that news of their ‘death’ has been greatly exaggerated, shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets.'"

A United Nations committee has advanced a resolution sponsored by Brazil and Germany to make the right to privacy against unlawful surveillance applicable to anyone in the world, The Washington Post reported. The two countries sponsored the measure after revelations of monitoring  by the United States of Brazilian President Dilma Rousseff and German Chancellor Angela Merkel.

The resolution is expected to pass the United Nations General Assembly too, The Post further reported. While the resolution is not binding law, General Assembly resolutions " reflect world opinion and carry political weight," The Post also reported.

The largely symbolic resolution was watered down though. The Post reported: "The key compromise dropped the contention that the domestic and international interception and collection of communications and personal data, 'in particular massive surveillance,' may constitute a human rights violation."